¶ 1. Plaintiff Roy Girouard appeals from an Addison Superior Court judgment dismissing his claims against defendant Robert Hoffman, Commissioner of the Vermont Department of Corrections (DOC), for failure to state a claim upon which relief can be granted under Vermont Rule of Civil Procedure 12(b)(6). Plaintiff contends that the court erred in determining that DOC did not violate the Ex Post Facto Clause of the United States Constitution when it applied the current version of 28 V.S.A. § 808(a)(6) to him, rather than the version of the statute that was in effect at the time plaintiff committed his crime. U.S. Const, art. I, § 10 (“No state shall . . . pass any ... ex post facto Law . . . .”). We reverse and remand to the superior court for additional proceedings.
¶ 2. Since plaintiffs appeal concerns a Rule 12(b)(6) motion, we accept as true the well-pleaded allegations in the complaint and all of the reasonable inferences that may be derived therefrom.
Richards v. Town of Norwich,
¶ 3. In 2007, plaintiff successfully completed the Cognitive Self Change Program while in prison. After completing this program, he began speaking to his caseworker about reentering the community on furlough. Before 2001, plaintiffs eligibility for furlough was not conditioned on completion of a minimum prison term. 28 V.S.A. § 808(a) (prior to amendment by 2001, No. 61, § 88). In 2001, the Legislature amended § 808 to require that an inmate complete his minimum term before he is eligible for reintegration furlough. 2 28 V.S.A. § 808(a)(6). As plaintiff was not sentenced to a minimum term, he cannot meet the eligibility requirements for reintegration furlough under the current statute.
¶ 4. Plaintiff argues that this change to § 808 in itself increased his punishment in violation of the Ex Post Facto Clause. Plaintiff also argues that the Ex Post Facto Clause is violated because this amendment made him ineligible for release on furlough, which significantly decreased his likelihood of being paroled. Plaintiff asserts that a favorable recommendation from DOC is required for his parole application to have any chance of success, and that he is unable to receive this recommendation without first successfully completing a minimum number of furlough days, citing 28 V.S.A. § 725(2) (“The department shall submit to the parole board a recommendation relative to whether the offender should be released to parole” when an offender has “successfully completed 180 days of supervision in a conditional reentry program”).
¶ 5. The superior court concluded that the 2001 amendment to § 808 did not increase the penalty for plaintiff’s crime, and thus, there was no violation of the Ex Post Facto Clause. This appeal followed.
¶ 6. We review a trial court’s disposition of a motion to dismiss de novo.
Bock,
¶ 7. To fall within the Ex Post Facto Clause prohibition, “a law must be retrospective — that is, it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it.”
Lynce v. Mathis,
¶ 8. The controlling inquiry in this context is whether the legislative change “created a sufficient risk of increasing the measure of punishment attached to the covered crimes.”
Garner v. Jones,
¶ 9. We agree that a change in the law that merely alters or eliminates an inmate’s eligibility for furlough does not rise to an Ex Post Facto Clause violation. Such a change relates to
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prison administration and regulation, and not an element of punishment, and is, therefore, beyond the purview of the Ex Post Facto Clause. See, e.g.,
Brown v. Day,
No. 96-35027,
¶ 10. Plaintiff does not, however, base his claim to this Court primarily on his reduced Opportunity for furlough. Instead, he alleges that the 2001 amendment altered his ability to obtain parole and effectively increased his sentence — from life in prison with the possibility of parole to life in prison without the possibility of parole — because successfully completing furlough is a prerequisite to parole. Legislative amendments that eliminate opportunities for parole that previously existed can result in Ex Post Facto Clause violations. See, e.g.,
Garner,
¶ 11. If in fact the 2001 amendment to the furlough statute created a sufficient risk of eliminating plaintiffs eligibility for parole, then plaintiffs claim of an Ex Post Facto Clause violation may prevail. Plaintiff alleges that the situation here is essentially identical to that in
Knox v. Lanham,
In contrast, an honest reading of the summary judgment record in this case leads to the conclusion that the effect of the interaction between the mandatory medium security classification and the Parole Commission’s unwritten requirement of work release and family leave before recommending parole, far from creating a “speculative and attenuated risk of increasing the measure of punishment attached to” plaintiffs’ crimes, directly impacts upon their actual eligibility for parole.
It may well be, as respondents argue, that “lifers” are only rarely granted parole. However, prior to the adoption of the measures here in question, that rare opportunity did exist for lifers who displayed an exceptional attitude and who compiled an excellent record while incarcerated. That opportunity has now been taken from them. The record establishes beyond dispute that (1) under current Parole Commission policy prisoners will *159 not be recommended for parole unless they are on work release, (2) prisoners cannot participate in work release unless they are classified to pre-release security and (3) under DCD 100-1 lifers cannot be granted pre-release security. The effect of these changes is to foreclose lifers from ever being able to obtain parole. Hope and the longing for reward for one’s efforts lie at the heart of the human condition. Their destruction is punishment in the most profound sense of the word. Accordingly, I find that the combined effect of the new DCD 100-1 and the Parole Commissioner’s proven policy constitutes a violation of the Ex Post Facto Clause.
Id.
at 758; see also
Elmore v. State,
¶ 12. The most recent decision of the United States Supreme Court addressing the effect of the Ex Post Facto Clause in parole eligibility situations, Garner v. Jones, is particularly instructive on the question before us. In Gamer, an inmate alleged a violation of the clause because the interval for parole consideration in his circumstances was increased from three years to up to eight years. The Court reversed a Court of Appeals decision finding an Ex Post Facto Clause violation as a matter of law, but remanded for factual development of the effect of the policy change on the inmate involved:
In the case before us, respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment. This remains the issue in the case, though the general operation of the Georgia parole system may produce relevant evidence and inform further analysis on the point.
The record before the Court of Appeals contained little information bearing on the level of risk created by the change in law. Without knowledge of whether retroactive *160 application of the amendment . . . increases, to a significant degree, the likelihood or probability of prolonging respondent’s incarceration, his claim rests on speculation.
Garner,
Reversed and remanded.
Notes
This case is an example of an attempt to try a ease based solely on a motion to dismiss. Consistent with our notice pleading requirements, the complaint is sparse, essentially pleading that plaintiff has been denied furlough during his prison term based on a new statutory policy and that the imposition of the new policy is an abuse of discretion and an Ex Post Facto Clause violation. Defendant immediately filed a motion to dismiss arguing that plaintiff had failed to exhaust his administrative remedies and that the denial of furlough was statutorily required. Through the filing of memoranda of law, plaintiff’s claim started to take shape — that plaintiffs injury was the loss of parole eligibility and his argument was that the imposition of the statutory policy was an Ex Post Facto Clause violation. The focus on parole eligibility became even sharper in this Court. Predictably, the motion to dismiss was an unhelpful way to narrow and define the issues. See, e.g.,
Bock v. Gold,
At issue here is only § 808(a)(6), which allows furloughs for the process of reintegration. Section 808 currently also authorizes furlough without requiring completion of a minimum term in limited circumstances, such as to permit the inmate to attend a funeral or obtain medical services.